A proposed rule rejected by the U.S. Senate Wednesday could increase regulation of smaller waterways that connect into larger waterways, such as the Kanawha River. (Photo by Steven Allen Adams)

CHARLESTON — West Virginia’s two U.S. senators joined a bipartisan group of lawmakers to oppose the latest rule from President Joe Biden to regulate streams and wetlands.
Sen. Shelley Moore Capito, R-W.Va., voted Wednesday to repeal a new rule from U.S. Environmental Protection Agency’s latest definition of “Waters of the United States,” or WOTUS. The resolution to repeal passed 53-43.
Capito talked about Wednesday’s vote during a virtual briefing with reporters Thursday from her offices near the U.S. Capitol Building.
“Through my leadership, we were able to score a big win, a bipartisan win, in a very divided Congress … to take down one of the most far-reaching rules and regulations that President Biden has put forward,” she said. “It is just another example of the administration wanting to regulate everything from the federal government’s viewpoint.”
The latest WOTUS rule, developed by the EPA and the U.S. Army Corps of Engineers and finalized at the end of last year, defines what is and isn’t a wetland, stream or “navigable waters.” The rule would provide protections to interstate rivers and the streams and wetlands connected to those waterways.
“We know whether you’re a small business, a farmer, a rancher or a private landowner or someone developing a golf course or somebody building a road or a bridge, the permitting issues are broken in this country,” Capito said. “Part of it is because of rules like this WOTUS rule.”
U.S. Sen. Joe Manchin, D-W.Va., and three other Democratic senators voted with the Republican minority, as well as U.S. Sen. Kyrsten Sinema, I-Ariz.
“It is essential to ensure clean water for all West Virginians and Americans, but we can achieve this without regulating our hard-working people out of business,” Manchin said in a statement Wednesday. “I’m proud to support this resolution of disapproval, and I encourage President Biden to accept this clear and bipartisan rejection of his administration’s overreaching and unnecessary rule.”
The rule was overturned through the Congressional Review Act, which allows Congress to pass resolutions to halt final rules. The U.S. House of Representatives passed the joint resolution on March 9, with U.S. Reps. Alex Mooney, R-W.Va., and Carol Miller, R-W.Va., voting yes. Biden is expected to veto the joint resolution.
“He’s saying he will veto it, but he is really not listening to the voices of the heartland of this country if he vetoes it,” Capito said. “It’s a very far-reaching rule that impacts so many small businesses and farmers in the State of West Virginia.”
The WOTUS rule is almost always contested due to concerns about how broad the rule sometimes is. The American Farm Bureau is leading a coalition of groups opposing the rule, filing a lawsuit in U.S. District Court in January.
“The administration’s WOTUS rule is yet another example of dangerous federal overreach,” Manchin said. “The proposed changes would inject further regulatory confusion, place unnecessary burdens on small businesses, manufacturers, farmers and local communities and cause serious economic damage.”
The rule is also opposed by the governors of 25 out of 50 states, including West Virginia Gov. Jim Justice. These governors wrote Biden a letter Jan. 30 expressing their concern about the new WOTUS rule.
“The WOTUS definition has been under scrutiny for nearly 20 years, and your Administration’s rule only further complicates the efforts to create certainty under the CWA (Clean Water Act) for rural communities,” the governors wrote.
“The substance of the rule hinders State governments as we seek to give clarity and consistency to businesses, farms and individuals regarding the regulatory framework for water,” the letter continued. “The broad definitions used in the 514-page document only add to the confusing and complicated history of WOTUS. In fact, it appears that the EPA is seeking to regulate private ponds, ditches and other small water features.”
The governors asked Biden to delay implantation of the rule, but it went into effect March 20. A ruling is expected in June from the U.S. Supreme Court in Sackett v. Environmental Protection Agency which could also affect enforcement of the rule.
Steven Allen Adams can be reached at sadams@newsandsentinel.com.

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